EEOC

On May 9, 2016, the Equal Employment Opportunity Commission (EEOC) released information providing guidance to employers and employees regarding how and when leave must be granted for reasons related to an employee’s disability in order to promote voluntary compliance with the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in employment and requires employers with 15 or more employees, to provide reasonable accommodations to applicants and employees with disabilities that require such accommodations due to their disabilities as long as it does not create undue hardship for the employer. A reasonable accommodation can include making modifications to existing leave policies and providing leave when needed for a disability, even where an employer does not offer leave to other employees.

The EEOC noted that it continues “to receive charge as some employers are unaware the Commissions positions about leave and the ADA. For example, some employers may not know that they may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation. Employer policies that require employees on extended leave to be 100 percent healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to return to work. Employers also sometimes fail to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave.”

The EEOC incorporates existing guidance regarding the ADA and leaves of absences and includes, leave as a reasonable accommodation, equal access, leave policies, the interactive process, reinstatement, reassignment and undue hardship. With regard to providing equal access to leave under the employer leave policy, if an employer receives a request for leave for reasons related to a disability and the leave falls within the employer’s existing leave policy, it should treat the employee requesting the leave the same as an employee who requests leave for reasons unrelated to a disability.

In regard to leave as a reasonable accommodation, the EEOC stated, “The purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work. Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.”

As to maximum leave policies, such as a Family Medical Leave Act policy that provides leave for a maximum of 12 weeks, the EEOC stated that, “The ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, they may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.”

In regard to the employee’s return to work from disability leave, the EEOC states, “The request may be made by the employee, or it may be made in a doctor’s note releasing the employee to return to work with certain restrictions. An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions — that is, be “100%” healed or recovered — if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.”

In some situations, the requested reasonable accommodation will be reassignment to a new job because the disability prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in undue hardship. The EEOC takes the position that if reassignment is required, an employer must place the employee in a vacant position for which he is qualified, without requiring the employee to compete with other applicants for open positions. Leave as a reasonable accommodation includes the right to return to the employee’s original position. However, if an employer determines that holding open the job will cause an undue hardship, then it must consider whether there are alternatives that permit the employee to complete the leave and return to work. As such, employers should take care in reviewing its existing leave and return-to-work policies with regard to language that precludes the possibility of leave as a reasonable accommodation or an employee being able to return to work at less than complete health.

Joette S. Doran has her law practice in Hoffman Estates. She concentrates in employment law and handles employment law actions in state and federal administrative agencies and courts. She was a former Co-Chair of the NWSBA Employment Law Committee, is a Member of the Board of Governors and is the Chair of the Women’s Law Committee. For more information please visit her website at www.joettedoran.com.